Ontario's Essential Workplaces Under the COVID-19 Emergency Order: Practical Information for Assessing Employer Obligations

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Bennett Jones LLPThe Ontario government has issued a list of categories of essential workplaces that are permitted to remain open, under the authority granted under the Emergency Management and Civil Protection Act (Ontario), as the province responds to the evolving COVID-19 outbreak. The order to close all non-essential workplaces went into effect at 11:59 p.m. on Tuesday March 24, and will remain in effect for at least 14 days, with the government intending to review whether the order should be extended beyond that date as it approaches.

Key Issues for Essential Workplaces in Ontario

This is an unprecedented situation in Ontario. The following general approach can be considered in Ontario (different rules and obligations apply in other provinces).

Issue #1: Review the list to confirm if your business is "essential"

The list of categories of essential workplaces can be found here, and are discussed in more detail below. It is important to understand whether your business is one that can continue in operation or must shut down during the period of the emergency order:

  • First, to determine if you can lawfully continue to operate in Ontario.
  • Second, if your business is not permitted to operate (see Issues #2 and #3 below), this may affect whether staff are placed on lay-off or a Declared Emergency Leave (DEL) under the Ontario Employment Standards Act, 2000 (ESA). 

Teleworking and online commerce are permitted at all times for all businesses.

Issue #2: If you are temporarily ceasing operations, what is the reason?

Are you considering a temporary cessation of operations because of (1) lack of work or (2) the perception you are not an essential business and are required to close (other than the teleworking/remote operations)? The answer is important because as per Issue #3 below, whether your business is "essential" or not and why you cease to operate will affect whether staff should be placed on a temporary lay-off or a Declared Emergency Leave.

Issue #3: Temporary lay-off vs Declared Emergency Leave under the ESA

The answer to this question is nuanced and depends on the answers to the questions above.

If your business is not an essential business and is required to close as a result of the order by the Ontario Government, your staff are likely eligible for an unpaid DEL under the ESA and they may apply for employment insurance benefits under the federal Employment Insurance Act (EI Act). A DEL is statutory leave and benefits should be continued during the DEL. It is anticipated the DEL will last until the Ontario Government declares the emergency terminated.

If your business is not affected by the mandatory closure order but will be ceasing operations for reasons such as lack of customer/client demand, this may still be a temporary lay-off under the ESA and your staff are eligible to apply for benefits under the EI Act.

Careful consideration should be given to this decision.

Issuing Records of Employment

Given the unprecedented number of lay-offs and employees being put on a DEL, employers (or their payroll-service providers) will need to issue Records of Employment. A link to Service Canada's direction and a copy of the relevant excerpt are below, but the bottom line is that you should code your Records of Employment as follows:

A – For layoff (i.e., lack of work)
D – For illness or injury (i.e., illness or quarantine due to COVID-19)
N – For leave (i.e., DEL in Ontario)

Details are at Employment Insurance – Record of Employment on Service Canada’s website. Here is the relevant excerpt:

If your employees are directly affected by the coronavirus (COVID-19) and they are no longer working, you must issue a Record of Employment (ROE).

When the employee is sick or quarantined, use code D (Illness or injury) as the reason for separation (block 16). Do not add comments.

When the employee is no longer working due to a shortage of work because the business has closed or decreased operations due to coronavirus (COVID-19), use code A (Shortage of work). Do not add comments.

When the employee refuses to come to work but is not sick or quarantined, use code E (Quit) or code N (Leave of absence), as appropriate. Avoid adding comments unless absolutely necessary.

Note that employers should seek legal advice before issuing a code E (Quit) for an employee who has engaged in a work refusal, even if the work refusal does not appear to be validly exercised.

Essential Workplaces in Ontario

Ontario’s list of essential workplaces are grouped in 19 categories. Ontario’s Premier  was clear to state that the list of essential services could be adjusted, saying, “Items can be taken off or added. It is going to be an open list."

The Government of Ontario has launched an information line for businesses with questions about essential and non-essential workplaces.

Essential workplaces that remain open are reminded to put in place protocols for physical distancing, regular hand-washing and other appropriate measures in order to protect the health and safety of employees and the general public.

Here is an overview of the categories of essential service businesses in Ontario under the order:

  1. Supply chains
  2. Retail and wholesaling
  3. Food services and accommodations
  4. Institutional, residential, commercial
  5. Telecommunications and IT
  6. Transportation
  7. Manufacturing and production
  8. Agriculture and food production
  9. Construction
  10. Financial activities
  11. Resources
  12. Environmental services
  13. Utilities and community services and industrial maintenance
  14. Communications industries infrastructure/service providers
  15. Research
  16. Health care and seniors care and social services
  17. Justice sector
  18. Other businesses
  19. Business regulators and inspectors

Ontario’s Detailed List

The provincial government has provided further details on each of the categories to help businesses determine whether they fall within an essential service category. Here is that further detail:

Supply chains

  1. Businesses that supply other essential businesses or essential services with the support, supplies, systems or services, including processing, packaging, distribution, delivery and maintenance necessary to operate

Retail and wholesaling

  1. Businesses engaged in the retail and wholesale sale of food, pet food and supplies, and household consumer products necessary to maintain the safety, sanitation and essential operations of residences and businesses, including grocery stores, supermarkets, convenience stores, markets and other similar retailers
  2. Businesses that provide essential items for the health and welfare of animals, including feed, animal food, pet food and animal supplies including bedding
  3. Beer, wine and liquor stores and alcohol producers, and stores that sell beer and wine through arrangements with authorized providers; cannabis stores and cannabis producers
  4. Gas stations, diesel, propane and heating fuel providers including providers of motor vehicle, aircraft and water/marine craft fuels
  5. Motor vehicle, auto-supply, auto and motor-vehicle-repair, including bicycle repair, aircraft repair, heavy equipment repair, watercraft/marine craft repairs, car and truck dealerships and related facilities
  6. Hardware stores and stores that provide hardware products necessary to the essential operations of residences and businesses
  7. Business providing pharmaceuticals and pharmaceutical services, including pharmacies and dispensaries
  8. Businesses that supply office products and services, including providing computer products and related repair and maintenance services, for individuals working from home and for essential businesses
  9. Safety supply stores (e.g. work clothes, Personal Protective Equipment)

Food services and accommodations

  1. Restaurants and other food facilities that prepare and serve food, but only for delivery or takeaway, together with food delivery services
  2. Hotels, motels, shared rental units and similar facilities, including student residences

Institutional, residential, commercial and industrial maintenance

  1. Businesses that provide support and maintenance services, including urgent repair, to maintain the safety, security, sanitation and essential operation of institutional, commercial, industrial and residential properties and buildings, including, property management services, plumbers, electricians, custodial/janitorial workers, cleaning services, security services, fire safety and sprinkler systems, building systems maintenance and repair technicians and engineers, mechanics, (e.g. HVAC, escalator and elevator technicians), and other service providers who provide similar services

Telecommunications and IT infrastructure/service providers

  1. Businesses engaged in providing or supporting Information Technology (IT) including online services, software products and related services, as well as the technical facilities such as data centres and other network facilities necessary for their operation and delivery
  2. Businesses providing telecommunications services (phone, internet, radio, cell phones etc.) as well as support facilities such as call centres necessary for their operation and delivery

Transportation

  1. Taxis and other private transportation providers providing transportation services necessary for activities of daily living
  2. Businesses and facilities that provide transportation services to businesses and individuals including by air, water, road, and rail including providing logistical support, distribution services, warehousing and storage, including truck stops and tow operators
  3. Businesses that provide materials and services for the operation, maintenance and safety of transportation systems (road, transit, rail, air and marine) including delivery of maintenance services such as clearing snow, response to collisions, and completing needed repairs to the transportation systems

Manufacturing and production

  1. Businesses that extract, manufacture, process and distribute goods, products, equipment and materials, including businesses that manufacture inputs to other manufacturers (e.g. primary metal/ steel, blow molding, component manufacturers, chemicals, etc. that feed the end-product manufacturer)
  2. Businesses, facilities and services that support and facilitate the two-way movement of essential goods within integrated North American and Global supply chains

Agriculture and food production

  1. Businesses that farm, harvest, process, manufacture, produce or distribute food, including beverages, crops, animal products and by-products, aquaculture, hunting and fishing
  2. Businesses that support the food supply chain including assembly yards, livestock auctions, food distribution hubs, feed mills, farm equipment suppliers, feed suppliers, food terminals and warehouses, animal slaughter plants and grain elevators
  3. Business that support the safety of food including animal and plant health and animal welfare
  4. Businesses that provide veterinary services, and that supply veterinary and animal control medications and related supplies and testing kits
  5. Businesses that help to ensure safe and effective waste management including deadstock, rendering, nutrient management, bio hazardous materials, green waste, packaging recycling

Construction

  1. Construction projects and services associated with the healthcare sector, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space
  2. Construction projects and services required to ensure safe and reliable operations of critical provincial infrastructure, including transit, transportation, energy and justice sectors beyond the day-to-day maintenance
  3. Construction work and services, including demolition services, in the industrial, commercial, institutional and residential sectors
  4. Construction work and services that supports health and safety environmental rehabilitation projects

Financial activities

  1. Capital markets (e.g., the TSX)
  2. Banking activities related to credit intermediation; credit unions
  3. Insurance
  4. Businesses that provide pension services and employee benefits services
  5. Businesses that provide financial services including payment processing, the payroll division of any employer (as defined by the Employment Standards Act/Occupational Health and Safety Act), any entity whose operation is the administration of payroll, banks and credit unions

Resources

  1. Businesses that ensure global continuity of supply of mining materials and products (e.g. metals such as copper, nickel and gold) and that support supply chains in Northern Ontario including:
    1. Mining operations, production and processing
    2. Mineral exploration and development
    3. Mining Supply and Services that support supply chains in the mining industry including maintenance of operations, health and safety
  2. Businesses that provide chemicals and gases to support the natural resource sector analytical labs and drinking water and wastewater sectors and other essential businesses
  3. Businesses that ensure global continuity of supply of forestry products (e.g. lumber, pulp, paper, wood fuel, etc.)
  4. Businesses that ensure global continuity of supply of aggregates to support critical infrastructure repairs and emergency response requirements (e.g. sandbags, armour stone barriers, etc.)
  5. Businesses that ensure global continuity of supply of petroleum and petroleum by-products

Environmental services

  1. Businesses that support environmental management/monitoring and spill clean-up and response, including environmental consulting firms, professional engineers and geoscientists, septics haulers, well drillers, pesticides applicators and exterminators, management of industrial sewage/effluent (e.g. for mining operations), and environmental laboratories

Utilities and community services

  1. Utilities, and Businesses that support the provision of utilities and community services, including by providing products, materials and services needed for the delivery of utilities and community services:
    1. Waste collection, waste/sewage treatment and disposal, operation of landfills, and hazardous waste disposal
    2. Potable drinking water
    3. Electricity Generation, transmission, distribution and storage
    4. Natural Gas distribution, transmission and storage
    5. Road construction and maintenance
    6. Police, fire, emergency services including coroner services and pathology services
    7. Corrections and courts services
    8. Other government services including licenses and permits
  2. Businesses engaged in or supporting the operation, maintenance and repair of critical infrastructure (railways, dams, bridges, highways, erosion control structures, etc.)

Communications industries

  1. Newspaper publishers
  2. Radio & Television Broadcasting
  3. Telecommunications providers

Research

  1. Businesses and organizations that maintain research facilities and engage in research, including medical research and other research and development activities
  2. Businesses that provide products and services that support research activities

Health care and seniors care and social services

  1. Organizations and providers that deliver home care services
  2. Retirement homes
  3. Long-term care facilities
  4. Independent health facilities
  5. Laboratories and specimen collection centres
  6. Manufacturers, wholesalers, distributors and retailers of pharmaceutical products and medical supplies, including medications, medical isotopes, vaccines and antivirals; medical devices and medical supplies
  7. Manufacturers, logistics and distributors of products and/or services that support the delivery of health care in all locations (including but not limited to hospitals, labs, long-term care homes, other residential health care, physicians, nurse practitioners and midwives, and home care services)
  8. Businesses that provide products and/or services that support the health sector or that provide health services, including mental health and addictions and counselling supports
  9. Businesses that sell, rent or repair assistive/mobility/medical devices, aids and/or supplies
  10. Businesses that provide personal support services (many seniors and persons with disabilities, who can afford to, hire individuals to assist with the activities of daily living)
  11. Health care professionals providing emergency care including dentists optometrists and physio-therapists
  12. Not-for-profit organizations that provide critical personal support services in home and also provide residential services for individuals with physical disabilities (such as the Centre for Independent Living and March of Dimes)
  13. Businesses and all other organizations that support the provision of food, shelter, safety or protection, and/or social services and other necessities of life to economically disadvantaged and other vulnerable individuals, including but not limited to food banks, violence against women emergency shelters, homeless shelters, community housing, supportive housing, children's aid societies, residential services for adults with developmental disabilities and for children, and custody and detention programs for young persons in conflict with the law

Justice sector

  1. Professional and social services that support the legal and justice system

Other businesses

  1. Rental and leasing services, including automobile, commercial and light industrial machinery and equipment rental
  2. Businesses providing mailing, shipping, courier and delivery services, including post office boxes
  3. Laundromats, dry cleaners and laundry service providers
  4. Professional services including lawyers and para-legals, engineers, accountants, translators
  5. Businesses providing funeral, mortician, cremation, transfer, and burial services, and any related goods and products (such as coffins and embalming fluid)
  6. Land registration services, and real estate agent services and moving services
  7. Businesses providing security services including private security guards; monitoring or surveillance equipment and services
  8. Businesses providing staffing services, including temporary help
  9. Businesses that support the safe operations of residences and essential businesses
  10. Businesses that provide for the health and welfare of animals, including veterinarians, farms, boarding kennels, stables, animal shelters, zoos, aquariums, research facilities and other service providers
  11. Child care services for essential workers, and home child care services of less than six children
  12. Businesses providing cheque cashing services

Business regulators and inspectors

  1. Organizations, including Administrative Authorities, that regulate and inspect businesses

The Ontario government notes that:

  • For the purposes of this order, businesses include any-for-profit, non-profit or other entity providing the goods and services described herein
  • This does not preclude the provision of work and services by entities not on this list either online, by telephone or by mail/delivery
  • Teleworking and online commerce are permitted at all times for all businesses

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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